FEDERAL COURT OF AUSTRALIA

Tisdall v Blazow [2005] FCAFC 190

DR PETER THOMAS TISDALL v JUDY BLAZOW (in her capacity as the Determining Officer appointed pursuant to section 86 of the Health Insurance Act 1973) AND THE PROFESSIONAL SERVICES REVIEW TRIBUNAL (constituted by the Honourable A R Neaves, Professor D Tiller and Dr P Joseph)

VID 45 OF 2005

HEEREY, SUNDBERG and NORTH JJ

7 SEPTEMBER 2005

MELBOURNE

THE COURT ORDERS THAT:

1.                              The appeal and application are dismissed.

2.                              The applicant is to pay the respondents’ costs of the proceeding.

3.                              (a)  Leave is granted to the first respondent to file an application for an order that costs be awarded on a basis other than a party and party basis.

(b)  Any such application is to be filed and served by 14 September 2005.

(c)    The first respondent is to file and serve a brief written submission in support of any such application by 15 September 2005.

(d)   The applicant is to file and serve a brief written submission in response to any such application by 21 September 2005.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

THE COURT:

1                     Before the Court is an appeal under s 124A of the Health Insurance Act 1973 (Cth) (the Act) and an application for review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) by the applicant, Dr Peter Tisdall, a general practitioner, in relation to a determination made the Professional Services Review Tribunal (the Tribunal) on 23 December 2004.  Whilst both the appeal from the Tribunal’s decision and the application for judicial review both arise in the original jurisdiction of this Court, on 16 February 2005 the Chief Justice made a direction pursuant to s 20(1A) of the Federal Court of Australia Act 1976 (Cth) that the jurisdiction of the Court in these proceedings would be exercised by a Full Court.

2                     The Tribunal determined that the applicant be disqualified from practice as a doctor for one year, that he be disqualified from providing certain Medicare services for two years, that he repay to the Commonwealth Medicare benefits amounting to $138,594.15, and certain other matters.

3                     The role of the Tribunal was to review the findings of Professional Services Review Committee No 106 (the Committee).  On 28 August 2001, the Committee found that in the 1996 calendar year, the applicant failed to provide an appropriate level of clinical input in respect of 52 Medicare Benefit Schedule, Item 23 (Level B) services examined by the Committee.  It found that the applicant’s conduct in connection with the rendering of these services would be unacceptable to the general body of general practitioners, and, hence, the Committee found that the applicant had engaged in inappropriate practice as defined in s 82(1)(a) of the Act. 

4                     The circumstances in which the Committee was established, the procedure adopted by it, the contents of its report, the making of the determination by the Tribunal based upon the report of the Committee, the legislative scheme under which the steps were taken, and a description of the issues before the Tribunal are all set out at [1]–[60] inclusive of the decision of the Tribunal.  The exposition is so clear and comprehensive that it is unnecessary to recount those matters again in these reasons.  Hence, these reasons should be read as incorporating those paragraphs from the Tribunal’s decision.  By taking this course we can move directly to the questions argued on the appeal and the application.

5                     In passing we note that the original application to the Court filed on 17 January 2005 was made under the Administrative Decisions (Judicial Review) Act 1977 (Cth).  It named the determining officer and the Tribunal as respondents.  The application was amended on 23 March 2005.  The amendment relied on the right of a party to the Tribunal proceedings to appeal to the Federal Court under s 124A of the Act on a question of law only.  Section 118 of the Act relevantly provided that the parties to the proceedings before the Tribunal were Dr Tisdall and the Determining Officer.  This may explain why the Determining Officer was named as the only respondent in the amended document.  The first respondent noted in its written submissions that the second named respondent remained party to the proceeding.  However, the second respondent did not take any part in the hearing.

6                     It is also worth noting that the proceedings before the Tribunal and this Court were conducted under Pt VA of the Act.  Whilst Pt VA was repealed with the commencement of the Health Insurance Amendment (Professional Services Review) Act 1999 (Cth) (the Amendment Act) on 1 August 1999, s 65 of Sch 1 of the Amendment Act provides that professional services reviews initiated prior to the commencement of the Amendment Act are to be dealt with under the former regime.

denial of procedural fairness – The Specialists’ Affidavits

7                     Ground 2.3 of the amended notice of appeal stated:

The Tribunal also erred in law by ruling that the Committee was not required to inform the Applicant in what respects the contents of the specialists’ affidavits filed on his behalf were regarded by it as insufficient to displace its tentative findings set out in the draft report or to afford him a further opportunity to put further material before it.

8                     In oral argument, Dr Dean, who appeared as counsel on behalf of the applicant, elaborated this ground of appeal.  Clearly enough the requirements of procedural fairness depend on the circumstances of each case.  Dr Dean portrayed the circumstances faced by the applicant in the following way.  He contended that the affidavits in question were critical to the applicant’s success before the Committee.  They provided the complete answer to the views expressed by the Committee in its draft report.  Therefore, he argued, the Committee was bound to indicate to the applicant if and why it was minded not to accept the affidavits.  Only then would the applicant have had a fair opportunity to respond to the Committee’s views.  However, so it was argued, the Committee failed to draw his attention to the issues on which it intended to find against him.  The Committee thereby denied him procedural fairness, and the Tribunal likewise denied him procedural fairness by adopting the Committee’s decision on this issue.

9                     The factual background to this submission is as follows.  As is recorded in detail in the Tribunal’s decision referred to above, the Committee conducted hearings on 5 May 1999, 21 July 1999, and 16 August 1999.  After these hearings, the Committee gave the applicant the opportunity to provide written submissions.  To assist him, the Committee set out its concerns in a letter dated 14 September 1999.  The applicant’s solicitor filed a written response on 27 September 1999.  On 4 October 1999, the Committee provided the applicant with a draft of its proposed report, and invited the applicant to make final submissions.  The applicant then filed an application in this Court alleging numerous errors of law including a denial of procedural fairness in the making of the draft report.  An interlocutory application was adjourned, and the Committee agreed to reopen the hearing to give the applicant a further opportunity to put his case.  On 28 March 2001, the applicant gave further evidence to the Committee, and also filed a number of affidavits from medical colleagues in response to the draft report.  The applicant was then given further time to file a written submission.  The submission was filed on 18 April 2001.

10                  The Committee indicated on several occasions in its final report that it had taken all the evidence before it into account.  In relation to the affidavits, the Committee said:

57.       In his submissions to the Committee on 28 March 2001, Dr Tisdall again provided a large number of affidavits from specialists.  The evidence contained in the affidavits, which was considered by the Committee in preparing this final report, commented specifically on the services examined in the first three sittings.  This additional evidence enabled the Committee to further consider the clinical information relating to the services.  [emphasis in original]

11                  The proceedings brought by the applicant against the draft report of the Committee were ultimately determined on the basis of the final report which had by then been delivered.  On 15 February 2002, Tamberlin J delivered judgment in that proceeding (Tisdall v Health Insurance Commission [2002] FCA 97).  He dismissed the application.  In particular, at [115] he rejected the very argument which was reagitated in this hearing:

In the context in which the affidavits were proffered it was not necessary nor appropriate to require or furnish any particulars as to the thought processes of each of the Committee members.

12                  Then, before the Tribunal, the applicant argued that the Tribunal should not give consideration to 14 of the 52 services dealt with by the Committee because the Committee had denied procedural fairness to the applicant in dealing with those services.  The Tribunal outlined the applicant’s argument as follows:

63.       Counsel for the applicant sought to distinguish the argument presented to the Tribunal from those dealt with by Tamberlin J.  He submitted that the applicant had been denied procedural fairness in that the Committee had failed to give the applicant adequate notice of the reasons upon which the Committee might, notwithstanding the affidavit evidence, make a finding of inappropriate practice in relation to the particular services the subject of that affidavit evidence so as to afford the applicant a further opportunity to answer.  Expanding on this submission, counsel contended that, in relation to a number of the services in question, the applicant had sought to answer potential grounds of criticism by reference to what he appeared to have believed was the basis for that criticism and the Committee failed to reveal to him that he was wrong in thinking that the case he had to meet in relation to the particular service was the one he was attempting to address.

13                  After emphasising that the Committee was bound to afford procedural fairness to the applicant, and after setting out the history of the hearing which we have summarised at [9] of these reasons, the Tribunal continued:

66.       We are satisfied that the applicant was given appropriate notice of the matters being investigated by the Committee including, in particular, the appropriateness of his clinical input in rendering, during the referral period, the identified medical services and that he had a real opportunity to respond.  In our opinion, the Committee was not obliged to do any more than it had done in order to ensure that the applicant was fairly apprised of the issues which he had to meet if he were to satisfy the Committee that his conduct in rendering the services in question did not involve engaging in inappropriate practice.  In particular, the Committee was not required, by considerations of procedural fairness, to inform the applicant in what respects the contents of the affidavits were regarded by it as insufficient to displace its tentative findings set out in the draft report or to afford him yet another opportunity to put further material before it.  [emphasis added]

14                  Finally, it should be noted that the Tribunal gave independent attention to the affidavits as follows:

76.       Having given consideration to those affidavits in preparing its final report, the Committee observed that the additional evidence “enabled it to further consider the clinical information relating to the services”.  An examination of the affidavits and the other relevant material before the Tribunal provides substantial reasons supporting the Committee’s final position that the material deposed to in those affidavits was not sufficient to displace the findings of inappropriate practice in relation to any of the 52 individual services identified in Appendix 1 to its report.  In a number of instances the Committee could clearly not be confident that the deponent of the affidavit had been fully apprised of all the relevant information that was before the Committee.  In some instances the opinions expressed were of general application and did not address the specific circumstances of the individual case.  In other instances the opinion expressed was barely supportive of the applicant’s position and in some cases, although support for the applicant’s position was given, what was said provided only general or qualified support.  Some of the statements made may properly be characterised as equivocal.  Some of the affidavits expressed opinions limited to some aspects only of the service under consideration and did not address all the concerns which led the Committee to its conclusion of inappropriate practice.  In some cases the deponent of the affidavit was expressing an opinion outside his area of specialisation.  To some of the statements in that category we can give no credence whatsoever.  In cases where the specialist had previously examined the patient upon referral by the applicant during the referral period and had written a contemporaneous report thereon, the material, far from being supportive of the applicant, demonstrated that a patient history had been recorded by the specialist that was different from, and more extensive than, that obtained by the applicant.

77.       The specialist affidavits have, in consequence, provided only limited assistance to the Tribunal in considering the question whether we agree with the Committee’s findings of inappropriate practice.  [emphasis in original]

15                  We have examined the complaints made that the applicant was denied procedural fairness in relation to the 14 cases being Cases 4, 6, 9, 10, 11, 22, 33, 38, 43, 44, 45, 46, 49 and 64.  We do not accept the applicant’s argument.  Far from the issues relied upon by the applicant being unheralded, they were clearly articulated by the Committee in its draft report. Following the final hearing before the Committee, the applicant filed a 94 page final submission dated 11 April 2001, signed by Mr Monotti of counsel, which, inter alia, addressed the draft report findings in respect of each patient and outlined the final state of the evidence after the hearing on 28 March 2001.  The contents of the submission disclose that the applicant was well aware of both the general and detailed basis of the proposed findings against him. In relation to each case we are satisfied that the applicant was given generous notice of the issues which the Tribunal determined adversely to him.  We will now address each of the cases relied upon by the applicant. 

16                  The first instance relied upon by the applicant concerns Case 38.  The draft report of the Committee stated in relation to this patient: 

The record reads “ultrasound — NAD Zantac 150 mg Ba meal.”  Dr Tisdall said this was a new patient.  She had seen another doctor who had ordered an upper GI ultrasound.  On the day of the identified service, she complained of nausea and epigastric pain.

Dr Tisdall said that he could not recall the nature of the pain.  He said he would have felt her abdomen and liver and decided she had reflux.  He gave her some Zantac and ordered a barium meal.

The Committee noted that four weeks later the patient had seen a specialist who wrote to Dr Tisdall.  The letter gave a significantly different history from that Dr Tisdall said that he had obtained at the consultation in question and described the presence of a hard tender mass in the epigastrium.  The letter also stated that an ultrasound confirmed the diagnosis of probable malignant invasion of the liver.

There was no evidence that Dr Tisdall managed the identified service in the way that he recounted.  The likelihood is that Dr Tisdall did not take an adequate history or carry out the adequate, necessary examination, as he ought to have done.

The Committee concluded that the examination and management of this patient would be unacceptable to the general body of general practitioners.

17                  The gastroenterologist to whom the patient was referred by the applicant swore an affidavit in which he said that he disagreed with the Committee’s draft conclusions and he gave his reasons.  Then, on 28 March 2001, when the Committee reconvened, the applicant spent much of the hearing addressing the contents of the specialists’ affidavits.  He said that Case 38 was the most important case as far as he was concerned.  He said “[t]he main criticism of me was that I had not examined the patient”.  He concluded his remarks concerning Case 38 as follows:

Now, I think that is a serious indictment to make allegations against me of not examining a patient.  With the combined knowledge of the committee I think it is a very serious thing that the committee can make those types of allegations against me and not know what is the likely progression of a case like that.  I think it is a disgrace.

18                  The Tribunal concluded on Case 38 as follows:

83.       Members of the Committee asked questions of the applicant on the basis that, if he had conducted, as he asserted, an appropriate examination of the patient on 26 September 1996, he would have discovered evidence of the tender mass in the epigastrium.  Included in the affidavits referred to in paragraph 30 above were two affidavits, one by the author of the letter dated 29 October 1996 and the other by an hepatic surgeon to whom the patient had also been referred.  Both deponents expressed the opinion that members of the Committee could not positively find that the mass would have been palpable on examination on 26 September 1996.  Based on those opinions it was submitted that the Tribunal should depart from the finding by the Committee of inappropriate practice.

84.       While we do not accept all that the deponents to those affidavits state, it is unnecessary to pursue the matter further as the answer to the applicant’s contention is that the finding of inappropriate practice does not depend upon a positive finding that the tender mass in the epigastrium was palpable on 26 September 1996.  The Committee, indeed, made no finding to that effect.  The basis of the Committee’s finding, with which we firmly agree, is that the applicant clearly did not elicit a history in any way resembling that taken by the specialist gastroenterologist.  In the light of that history, which the applicant should have obtained from a new patient, the treatment of the patient by the applicant on 26 September 1996 was totally inadequate and clearly demonstrates an absence of that degree of clinical input necessary for a Level B (item 23) consultation.  [emphasis added]

19                  It can be seen that the issue on which the Tribunal ultimately found against the applicant was drawn to his attention in the draft report.  That issue was whether he had elicited a sufficient history on which to determine the proper treatment necessary for the patient.  The transcript of the hearing before the Committee shows that he understood that allegation was made against him.

20                  The complaint made by the applicant now is that the Committee did not tell him that it disagreed with the specialist’s affidavit.  But the requirements of natural justice only demanded that the Committee disclose to the applicant the issues on which it proposed to find that his conduct was inappropriate.  The Committee did disclose that issue in Case 38.  It was not necessary to explain the reasoning by which it intended to reject the opposing contention on the issue which had been thus disclosed. 

21                  The same analysis applies to Cases 4, 43 and 46 where the issues on which the draft report of the Committee proposed adverse findings against the applicant were made clear.  The specialists’ affidavits addressed issues which had been articulated in the draft report of the Committee.

22                  Then, in Case 33, the issue dealt with in the specialist’s affidavit was directly articulated in the hearing held on 28 March 2001.  The patient presented with a knee problem.  The draft report of the Committee noted that the specialist to whom the patient had been referred, Mr Jones, “obtained a significantly different history and made different findings on examination”.  At the hearing, the Chairman expressly reiterated this concern and thereby made obvious that this was the matter of interest to the Committee.

23                  In the remaining cases not only were the issues in contention brought to the applicant’s attention in the draft report of the Committee but there were additional reasons why it was not necessary for the Committee to outline to the applicant its response to the specialists’ affidavits.  Contrary to Dr Dean’s characterization of the effect of the specialist’s affidavits, in none of the following cases did those affidavits provide an answer to the allegations made against the applicant.

24                  In some cases the affidavit did not address the proposed finding, so it could not be said that the affidavit was concerned with a critical issue to the success of the applicant.  An example is Case 49.  The patient saw the applicant for chest pain.  The draft finding was that the record of the consultation was so deficient that it did not evidence clinical input which would justify a Level B service in the view of the general body of general practitioners.  Mr McLellan, the specialist to whom the patient was referred, did not address the adequacy of the record.  Rather, he addressed a passing comment of the Committee that an ECG would have been appropriate for a person who complained of chest pains.  It was clear from the draft findings that this was not a determinative issue, but part of the Committee’s attempt to piece together a picture of the case presented to the applicant by the patient in question. 

25                  Another example in this category is Case 22.  The draft report of the Committee found that the treatment concerning an eye problem involved a Level A service rather than the more extensive Level B service.  The Committee noted that the applicant did not stain the patient’s eyes and did not normally do so.  The affidavit of the specialist, Mr Hardy-Smith, responded to what he took to be a criticism that the applicant did not normally stain eyes.  As this perceived criticism of the applicant was not the basis of the Committee’s proposed or actual finding, there was no reason for the Committee to raise Mr Hardy-Smith’s view with the applicant. 

26                  And again with Case 6, the affidavit of the specialist, Mr Nurse, was not responsive to the proposed finding.  Mr Nurse supported the treatment of nappy rash with Canestan and zinc cream as ordered by the applicant.  He said nothing about the proposed finding that the prior use of four courses of antibiotics may have caused the nappy rash.  This possible cause had been admitted by the applicant.  Then, Mr Campbell, swore an affidavit concerning the proper use of antibiotics to treat otitis media.  In relation to Case 6 he said that EES was an appropriate antibiotic to use.  But, this did not respond to the proposed finding which was directed to the inadequacy of the applicant’s explanation for prescribing six courses of antibiotic (one of which was EES).  Further, the applicant himself agreed that the Antibiotic Guidelines did not indicate EES was an appropriate drug for managing otitis media.  Whatever Mr Campbell thought of the Antibiotic Guidelines, the matter was taken out of contention by the applicant’s own admission.

27                  Then, in a number of other cases, the specialist’s support of the applicant was so qualified that it could not be said that the specialist’s affidavit raised a matter of such critical importance to the applicant’s success that the Committee was bound to articulate it as an issue.  For instance, in Case 9 the affidavit of Mr Campbell addressed the draft finding that the diagnosis of otitis media by the applicant was probably incorrect.  However, the criticism of the proposed finding was so qualified that it could not be described as such an obvious answer to the proposed finding that the Committee needed to explain to the applicant why it was not persuaded.  In any event, the subject matter in contention, namely the correctness of the diagnosis, was clearly in issue.  Procedural fairness only required that the applicant be made aware of the issue in contention. 

28                  Case 44 was another where the commentary from Mr Campbell was so equivocal that it did not amount to an obvious contradiction of the finding of the Committee. 

29                  Case 45 falls into the same category.  The specialist Mr Harwood, provided only qualified support of the applicant. 

30                  Then, in Case 11 the patient was treated for pain following a tooth extraction.  Mr Campbell’s affidavit joined issue on the subjects covered by the draft report of the Committee.  However, he only claimed a limited expertise in relation to dental extractions, and this reduced the value of his opinion.  There was no doubt about the concerns of the Committee in relation to the conduct of the applicant in the treatment of this patient.  Procedural fairness required no further amplification following Mr Campbell’s affidavit. 

31                  Mr Rubenfeld was a specialist who swore an affidavit in relation to a number of cases, including Case 10 in which the patient was treated with antibiotics for a cough.  The affidavit responded to certain remarks made by the chairman of the Committee in transcript.  It did not address the gravaman of the proposed findings which related to the applicant’s inadequate knowledge of infection, and his consequent lack of appropriate clinical input for the service provided.

32                  In relation to Case 64, Dr Dean relied on evidence from a Dr Gillham.  Unlike with the other 13 cases, no reference was provided by Dr Dean to any affidavit included in the appeal book from such a person.  However, references in the appeal book to the transcript before the Tribunal suggest that an affidavit from a Dr Gillham was not produced, and hence not relied upon in the Tribunal hearing.  In the hearing on 28 March 2001, the applicant read to the Committee from a document apparently from Dr Gillham.  The issue was whether it was appropriate to prescribe Phenobarb and Atrophine for colic in a two year old infant.  The draft report said that the medication had not been in vogue for twenty years.  Dr Gillham’s reported view was not supportive of the applicant.  He said that the medication had “fallen into disuse … [but had a] definite place in selected cases”.

33                  The draft report of the Committee, which was adopted by the Tribunal after the Tribunal’s independent consideration, gave notice to the applicant of the issues of concern to the Committee and upon which it ultimately decided adversely to the applicant in relation to the 14 cases relied upon by the applicant in this proceeding.  Procedural fairness required the applicant to be told of these issues in order to give him the opportunity to respond. 

34                  The specialists’ affidavits addressed these issues which had been flagged by the Committee.  It was not a requirement of procedural fairness in the circumstances of this case that the Committee articulate to the applicant the reasons why it was not persuaded by the specialist’s affidavits.  As the Full Court said in Commissioner for Australian Capital Territory State Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591–2: 

Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests.  That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker.  It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made.  The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material.  Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. 

See also Applicant M189 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 131; and MZWBW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 94.

35                  Further, in relation to the affidavits referred to at [24]–[32] of these reasons, there were additional reasons which we have explained as to why the Committee did not need to flag the inadequacy of the evidence contained in the affidavits.  Those inadequacies were obvious, especially in the circumstance that the applicant was legally represented before the Committee and the Tribunal.

the use made of clinical notes

36                  Ground 3.1 of the Notice of Appeal alleges an error of law by the Tribunal determining that the deficiencies in the applicant’s clinical notes did not dominate the Committee’s decision making. 

37                  Dr Dean explained that this ground was intended to mean that the Committee wrongly:

·                    regarded the failure to keep proper notes as itself a failure of clinical input;

·                    relied on the absence of notes as a central factor in proving that there was insufficient clinical input to justify the charge made by the applicant for the service provided; and

·                    placed on the applicant the burden of showing the necessary clinical input, so that where the applicant did not have sufficient notes and could not recollect the consultation, the Committee concluded that there had not been that clinical input.

38                  The Committee explained its general approach to the examination of the applicant’s conduct, and the role of his clinical notes, as follows:

39.       In considering whether Dr Tisdall’s conduct in connection with the rendering of the services may have been unacceptable, the Committee considered in context:

-           the clinical content of each service examined; and

-           the clinical necessity of those services in the context of Dr Tisdall’s overall management of his patients.

40.       The Committee was concerned at Dr Tisdall’s inability to provide the Committee with details of many of the services examined.  Dr Tisdall based his evidence in part on an attempt to reconstruct the service using his notes and his recall of what had occurred.

39                  And later, in the course of examining the applicant’s clinical input to the services under review, the Committee said:

66.       In relation to all of the services examined, the Committee was of the view that the medical records formed an integral part of the clinical input of these services.  It considered Dr Tisdall’s records to have been seriously deficient in important, often critical, information essential for the proper management of patients and maintaining continuity of care.

67.       It became evident during the hearing that each patient’s medical record did not contain detailed information about each attendance.  In the Committee [sic] opinion, medical records should contain sufficient information which would allow another doctor to carry on the management of the patient should the need arise.

68.       The Committee acknowledges that, while there was no legal obligation for Dr Tisdall to keep adequate clinical notes during the Referral Period, medical practitioners usually keep adequate and contemporaneous records of patient attendances.  These assist the practitioner in the management of his/her patients by recording necessary information about the patient’s significant medical history, relevant medications, allergies and progress of current illnesses.  In the absence of medical records, a practitioner is obliged to rely on his/her memory.  In the Committee’s view, the absence of a medical record can seriously impair a practitioner’s ability to manage his/her patients and could compromise patient care.

69.       The Committee understands that decisions, relating to whether a general practitioner has engaged in inappropriate practice, are not required to be based on whether his or her conduct is legal but on whether that conduct would be acceptable to the general body of general practitioners.

70.       Although the Committee was concerned about the adequacy of Dr Tisdall’s records, it did not arrive at its findings solely on the basis of his records.  Indeed, in most cases the Committee relied on Dr Tisdall’s own explanations of his diagnoses, treatments and management of his patients.  [emphasis in original]

40                  Tamberlin J said of the present argument (which was also raised in the previous proceedings) at [119]:

In relation to the inadequacy of his notes the Committee points out that it did not arrive at its findings solely on the basis of his records and in most cases it relied on his own explanations of diagnoses, treatment and management of his patients.  It acknowledged there was no legal obligation for the applicant to keep adequate clinical notes during the referral period but noted that medical practitioners usually keep adequate and contemporaneous records to assist in management of the patients by recording the necessary information about history, medications, allergies and illness.  In my view, there is nothing unfair or unreasonable in the approach taken by the Committee in respect of record keeping.

41                  The Tribunal dealt with this matter as follows:

71.       We are satisfied, contrary to the submission made on behalf of the applicant, that the consideration of the deficiencies in the applicant’s clinical notes did not dominate the Committee’s decision-making and that the Committee’s findings of inappropriate practice were not based solely or primarily on those deficiencies.  The questioning of the adequacy of the clinical notes arose as an integral and incidental part of the inquiry which the referral authorised.  The deficiencies found were but a factor taken into account by the Committee, along with other factors, in reaching its ultimate conclusion.  Indeed, had the Committee proceeded on the basis on which the submission was founded, the number of services found to be inappropriate would have been increased.  [emphasis added]

42                  Dr Dean took the Court to the Committee’s findings in Cases 1, 3, 4, 8, 12, 18, 19 and 34 to substantiate this argument.  We have examined the findings in each of those cases and conclude that the applicant’s arguments are not made out.  There was no error of law in the approach taken by the Tribunal.  The Committee was faced with the task, as it stated, to determine, first, the nature of the clinical input for each case, and then, to determine whether that input justified the charge made by the applicant.  Naturally, it looked to the notes of the consultation kept by the applicant.  This was obvious evidence to be considered.  But, in addition, in each case, the Committee had the direct oral evidence of the applicant about the nature of the service provided at each consultation.  Additionally, in a number of cases, the Committee also had recourse to the specialists’ affidavits to piece together the nature of the clinical input required.  The Committee examined all of this evidence.  It then came to a conclusion about the clinical input by the applicant.  Reference to the applicant’s notes formed part of the Committee’s consideration.  The way the Committee approached its function supports the Committee’s statement at [70] of its decision as to the role of the applicant’s notes in its deliberations.  This process did not involve placing too great an emphasis on the insufficiency of the applicant’s notes. 

43                  Finally, Dr Dean argued that there was an inconsistency in the approach of the Tribunal to the clinical notes when it said that the Committee’s questioning of the adequacy of the clinical notes arose as “an integral and incidental part of the enquiry”.  The context of this statement makes it clear that the Tribunal meant that reference to the notes was necessary, and hence integral to the enquiry, but incidental, in that other factors, such as the applicant’s oral evidence, were also to be taken into account given the inadequacy of the notes.  No legal error is disclosed in the Tribunal’s approach in this statement.

Level b descriptor

44                  Ground 4.1 of the Notice of Appeal stated:

The Tribunal erred in law by rejecting the contention, in paragraph 72 of its reasons, that the Committee took too restrictive a view of the circumstances that needed to exist in order that a service be properly regarded as falling within the item descriptor in the General Medical Services Table for a Level B (Item 23) consultation.

45                  The relevant discussion in the Tribunal’s decision stated:

72.       A further ground relied upon was that the Committee had, in relation to a number of the services examined, taken too restrictive a view of the circumstances that needed to exist in order that the service be properly regarded as falling within the item descriptor in the General Medical Services Table for a Level B (item 23) consultation.  We are unable to agree.  Indeed, the transcript record of the oral evidence given to the Committee by the applicant, some of which was repeated before us by way of submission, demonstrates a misunderstanding on the applicant’s part of the clinical input necessary to satisfy the differing requirements of the levels of surgery consultation services as prescribed in the General Medical Services Table.  We should add that we are satisfied that the Committee did not interpret the item descriptor for a Level B (item 23) consultation as involving a minimum time requirement. 

46                  In seeking to develop the argument in support of ground 4.1, Dr Dean recognised that it did not reflect the real argument he wished to put.  A further paragraph was added to ground 4, without opposition, in the following terms:

[T]he Tribunal took into account an irrelevant consideration, namely the applicant’s knowledge of the general medical services table as part of its deliberation on the adequacy of clinical input.

47                  Whilst Dr Dean did not formally abandon the other parts of ground 4, he made no further submission on them.  They cannot be supported and we reject them.

48                  In relation to the added ground, Dr Dean submitted as follows:

The point I am making now is that there is a process which the Committee must follow, the process is that it takes a range of services, random services.  It then investigates each service to determine what the input was.  Having determined what the input was, it then looks to see how the Doctor categorised them, and whether he got it wrong, or whether he got it right, and that is fine.  But … what they cannot say is that level A or level B or his knowledge thereof is relevant to question one; the input, and that is what they did.

49                  Dr Dean contended that the Committee made this error at [51] of its decision.  This paragraph must be read in its complete context:

47.       The Committee also noted Dr Tisdall’s statement that an item 23 does not have to last more than 5 minutes.  On the second hearing day, Dr Tisdall said:

“I mean, when you look at it, if you see somebody and give them an injection that is an A consultation.  If you do any more than that, that is a B consultation by definition, and I would have thought that if somebody comes in that has had an operation and comes into the surgery and somebody asks them how they are, looks at their wound, decides whether to take the sutures out and then discusses the histology, that is a B visit.  Even without the histology it is a B visit by definition.  By the definition in the book an A visit is if somebody walks into your surgery, you give them an injection, that is an A visit, and if you do any more than that it is a B visit.  And I’m suggesting to you that this was more than just giving somebody an injection.”

48.       The Committee acknowledged that the item descriptor of a Level B service does not require Dr Tisdall to spend any particular length of time with the patient.  However, the Committee was concerned that Dr Tisdall appeared to believe he could deliver the necessary clinical content of certain services in 5 minutes or less.

49.       Based on its collective experience the Committee believes that it would be extremely unlikely that the taking of a selective history, examining the patient and implementing a management plan in relation to 1 or more problems could be accomplished in 5 minutes or less.  Indeed, the MBS makes it clear that substantial clinical input is expected.

50.       Any problem which could be dealt with in this time would necessarily be an obvious one and, hence, would be more likely to conform to the descriptor for a Level A (MBS item 3) service (Professional attendance for an obvious problem characterised by the straightforward nature of the task that requires a short patient history and, if required, limited examination and management.)

51.       Therefore, the Committee had concerns at instances where services billed as Level B (MBS item 23) consultations in fact lacked sufficient clinical content to satisfy the descriptor for this item.  In instances where the Committee determined that the clinical complexity was overstated for a service identified, this was taken into account in the Committee’s findings.

52.       The Committee also noted that Dr Tisdall appeared to be confused about the clinical content of a Level B consultation.

53.       Dr Tisdall stated that, if he did anything more than give a patient an injection, this was a Level B consultation.  The Committee noted that, while giving an injection was used in the Schedule of Medicare Benefits as an example of a service that would fit the Level A descriptor, this was not the only sort of service which would fit the descriptor.  Many other types of service would also fit the Level A descriptor.  The Committee believes that the general body of general practitioners would not accept that simply asking the patient ‘how they were’ transformed a service into a Level B.  [emphasis added]

50                  The passages in the decisions of the Committee and of the Tribunal relied upon by the applicant do not bear the meaning for which the applicant contended.  Those passages were not directed to the question of ascertaining the clinical input made by the applicant.  At the time addressed at [51] quoted above, the clinical input had been determined.  The paragraph was directed to another issue altogether.  The Committee and the Tribunal were faced with claims from the applicant for Level B consultations which they determined, from all of the evidence, did not justify a charge at that level.  The question then arose — why did the applicant make a claim for payment at Level B?  That question required an answer in order to give coherence to the findings of the Committee and the Tribunal.  They may have found that the applicant was fraudulent, that is to say, that he knew the proper clinical input for a Level A and a Level B consultation and he knowingly made a false claim aware that the clinical input did not justify the higher charge.  But that was not their approach.  The Committee and the Tribunal explained that the wrong level of claim was made by the applicant because he was confused about the level of input necessary for each of the Level A or Level B consultations.  Viewed this way, the Committee, and hence, the Tribunal, made no legal error in the reference to the applicant’s knowledge of the input required for a Level B consultation. 

the applicant’s usual practice

51                  Ground 5.1(a) of the Notice of Appeal stated:

The Tribunal erred in law by failing to take into account, or properly take into account, relevant considerations in the review before it, namely:-

(a)       the evidence given by the Applicant before the Committee of his usual practice in relation to a number of the services performed by him (being the service that were the subject of adverse criticism by the Committee); …

52                  Dr Dean explained that this ground related to the Committee’s statement at [43] of its decision, which should be seen in the context of the preceding paragraphs:

40.        The Committee was concerned at Dr Tisdall’s inability to provide the Committee with details of many of the services examined.  Dr Tisdall based his evidence in part on an attempt to reconstruct the service using his notes and his recall of what had occurred.

41.        In many instances, he had no recall of the actual service and he attempted to base his reconstruction on what he stated was his ‘usual’ practice.  The Committee noted that evidence of his usual practice was not apparent from the medical records and was limited to Dr Tisdall’s assertions.  The Committee took into account the period of time that had elapsed since the date of each identified service examined.

42.        The Committee was concerned that Dr Tisdall based his evidence in many instances upon a statement of what his practice ought to have been, rather than necessarily what it was at the time the service was rendered.

43.        Accordingly, the Committee found that it could give little weight to Dr Tisdall’s evidence of what he asserted was his usual practice at the time of the service provided, with respect to what had actually occurred on a specific occasion identified. 

53                  The applicant submitted that the Committee erred at [43] by basing its decision on the applicant’s evidence of what his practice ought to have been, whilst the applicant gave no such evidence.  This argument does not address the ground of appeal which alleged that the Tribunal failed to take into account the Applicant’s usual practice.  Nevertheless, we will address the argument raised.  There is no doubt that the applicant gave evidence of his usual practice.  The contention that the applicant gave no evidence about what his practice “ought to have been” depends on reading what the applicant’s practice “ought to have been” at [42] as referring to something different from the applicant’s “‘usual’ practice” referred to at [41] and [43].  Such a reading is not warranted.  All three paragraphs deal with the same matter, namely, the applicant’s reconstruction of his clinical input by reference to his usual practice for a particular type of consultation.  The practice as it “ought to have been” referred to at [42] is meant by the Committee to refer to the applicant’s “‘usual’ practice” as is referred to at [41] and [43].  There was no legal error on this issue. 

conclusion

54                  It follows that the appeal and the application must be dismissed.  On the basis that costs normally follow the event, we will order that the applicant pay the respondent’s costs of the proceeding.  Should the first respondent wish to argue that costs be awarded on any basis other than a party and party basis, leave is granted to the first respondent to file and serve such an application by 14 September 2005 and to file and serve brief written submissions by 15 September 2005.  In the event that the first respondent does adopt that course, the applicant should file and serve brief written submissions in response by 21 September 2005.

Associate:

Dated:              7 September 2005